CHAMP v. JUNG (2019)

MEMORANDUM **

Plaintiffs L. P. Champ and L. J. Ammerman brought suit against McKinsey & Company and two foreign nationals who were never served, alleging fraud and breach of contract claims related to an oil deal in Albania.¹ The district court dismissed the action as time-barred under Arizona’s statute of limitations and then denied Plaintiffs’ motion for reconsideration. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Plaintiffs’ primary arguments on appeal are that: (1) the district court should have applied Switzerland’s ten-year statute of limitations because the underlying contract is governed by Swiss law; and, alternatively, (2) the district court should have ruled that exceptional circumstances preclude the application of Arizona law, and then applied New York law. However, neither argument was raised in response to McKinsey’s motion to dismiss and so the arguments are forfeited here. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“As a general rule, we will not consider arguments that are raised for the first time on appeal․ [A]n appellate court will not consider issues not properly raised before the district court.”).

Moreover, even if the arguments were not forfeited, dismissal would still be appropriate under Arizona’s statute of limitations. Ariz. Rev. Stat. §§ 12-543(3), 12-544(3). McKinsey is not a party to the contract and so is not bound by the agreement’s choice-of-law provision. See Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1175 (9th Cir. 2014); First-Citizens Bank & Tr. Co. v. Morari, 242 Ariz. 562, 399 P.3d 109, 115 (Ariz. Ct. App. 2017). The actual defendants who did sign the contract have not been served, and so are not part of the proceeding here. Furthermore, there are no exceptional circumstances in this case that justify the application of New York law instead of the law of the forum state. Jackson v. Chandler, 204 Ariz. 135, 61 P.3d 17, 18-19 (2003).

AFFIRMED.²

FOOTNOTES

1.   Because the parties are familiar with the facts of this case, we do not recount them in detail here.

2.   McKinsey’s separate motion to strike (Dkt. No. 27) is DENIED as moot.